Thursday, November 27, 2014

Lord, Thou hast given me a cell
Wherein to dwell,
A little house, whose humble roof
Is weather-proof:
Under the spars of which I lie
Both soft, and dry;
Where Thou my chamber for to ward
Hast set a guard
Of harmless thoughts, to watch and keep
Me, while I sleep.
Low is my porch, as is my fate,
Both void of state;
And yet the threshold of my door
Is worn by th' poor,
Who thither come and freely get
Good words, or meat.
Like as my parlour, so my hall
And kitchen's small;
A little buttery, and therein
A little bin,
Which keeps my little loaf of bread
Unchipp'd, unflead;*
Some brittle sticks of thorn or briar
Make me a fire,
Close by whose living coal I sit,
And glow like it.
Lord, I confess too, when I dine,
The pulse§ is Thine,
And all those other bits, that be
There plac'd by Thee;
The worts†, the purslain, and the mess
Of water-cress,
Which of Thy kindness Thou hast sent;
And my content
Makes those, and my beloved beet,
To be more sweet.
'Tis Thou that crown'st my glittering hearth
With guiltless mirth;
And giv'st me wassail-bowls to drink,
Spic'd to the brink.
Lord, 'tis Thy plenty-dropping hand
That soils my land;
And giv'st me, for my bushel sown,
Twice ten for one;
Thou mak'st my teeming hen to lay
Her egg each day;
Besides my healthful ewes to bear
Me twins each year;
The while the conduits of my kine
Run cream, for wine.
All these, and better, Thou dost send
Me, to this end,
That I should render, for my part,
A thankful heart,
Which, fir'd with incense, I resign,
As wholly Thine;
But the acceptance, that must be,
My Christ, by Thee.

--Robert Herrick (1591-1674)

______________________

*Unchipp'd = "intact", i.e., no part of the loaf broken or crumbled off; unflead = "unflayed", i.e., no crust peeled off or inner part laid bare.

§pulse = beans, peas, etc.; †worts = root vegetables or herbs.

A blessed and happy Thanksgiving to all: in Jesus' name we pray. Amen.

Wednesday, November 26, 2014

Today the Illinois Supreme Court posted twenty-eight pages of its recent dispositions of requests made by losing parties for leave to appeal their decision to that Court. On page twelve, at the very top, appears this brief notation:

What this means is that the highest court of a State has now ruled that there is no provision in the governing documents of the Episcopal Church (USA) that keeps a Diocese from withdrawing its membership in that organization. The Church in fact is an unincorporated association of dioceses fashioned under American common law, and not under the laws of any one given State. Under the First Amendment, members of such associations are free to leave the group at any time, with only reasonable restrictions placed on their ability to do so (they could be required to pay any back dues still owed, for example). The opinion delivered last April by the Illinois Fourth District Court of Appeal stands as written.

ECUSA's options are now very limited. They could ask the Illinois Supreme Court to rehear their request -- a move that has never been known to be successful among the Illinois attorneys to whom I have talked. And they have 90 days within which to file a petition for certiorari (review) with the United States Supreme Court -- which thus far has turned down every other recent petition in the various church property cases.

Moreover, the Diocese of Chicago was never admitted to the case as the successor to the remnant Diocese of Quincy that merged into it a year ago September. So there is a procedural difficulty to ECUSA's taking the case further: it no longer has a diocese as a co-party which it can misleadingly try to put forward as "the real Diocese of Quincy." And if no diocese is a party, who is left to complain that the departure of the Anglican Diocese was null and void, because the "real one" is right here? Just ECUSA, which itself is not a diocese, but an association of dioceses -- and it already has lost that argument in two Illinois courts.

Meanwhile, however, the decision will come as a very useful precedent for the courts in the other pending diocesan withdrawal cases -- which present a unique question that the Illinois court is now the first to have definitively decided. Watch for the withdrawing dioceses to cite the case to the courts in Texas (Ft. Worth), California (San Joaquin) and South Carolina.

Thursday, November 20, 2014

Blogging has had to take a back seat to the law, which (as they say truly) is a jealous mistress.

Nevertheless, there has not been all that much I care to blog about. The news is almost uniformly desultory, uninspiring and (dare I say) lacking in hope. The lawlessness at the very top has infected our institutions and governments down to the lowest level -- and they all seem to be getting away with it! What is the point of complaining if the checks and balances we used to be able to rely upon are out of order and dysfunctional?

A few bright rays emerge from the Mordor-like fog. Ted Cruz quotes Cicero on the floor of the Senate, indicting Barack Obama as Marcus Tullius once long ago did Catiline. And former Senator and retired federal judge James Buckley has a new book forthcoming, that promises a straightforward way out of a lot of the mess. Called Saving Congress from Itself, its recipe is simple: put an end to every kind of transfer payment from Congress to the States. You may preorder it here (or get the Kindle version if you would like to start reading it now), and read more about it here.

The order was expected, because neither decision by the Texas Supreme Court was final. The U. S. Supreme Court almost never agrees to review lower court decisions until they are final. In these two cases, the Fort Worth matter was sent back to Judge Chupp's court for a trial, and the Church of the Good Shepherd case was likewise sent back to the trial court in San Angelo for further proceedings.

The action by SCOTUS now frees both of those cases to move ahead.

In Fort Worth, Bishop Iker's attorneys have filed a motion for summary judgment which is scheduled for a hearing in December. Given the decision by the Texas Supreme Court, the only question remaining for the trial court to decide is whether or not ECUSA managed to create a valid trust in the Diocese's property which the Diocese did not revoke when it decided to withdraw in 2008. In Texas all trusts are deemed to be fully revocable at any time, unless the language creating the trust states otherwise.

ECUSA earlier claimed that its Dennis Canon imposed a trust upon each parish property whose title was held by Bishop Iker's corporate Diocese of Fort Worth, as well as on the Diocese's own property. But the Texas Supreme Court ruled that any Dennis Canon trust was not expressly irrevocable, and so the withdrawal of the Diocese and its associated parishes from the Episcopal Church (USA) effectively revoked any such trust.

Given that ruling, therefore, the outcome of Bishop Iker's summary judgment motion should be a foregone conclusion: there are simply no disputed facts requiring a trial. ECUSA did not ever try to impose an irrevocable trust in so many words, and its arguments that irrevocability was implied in its Dennis Canon, or alternatively in its long-standing relationships with its dioceses, will not meet the requirements of Texas' trust statute.

Once the Texas District Court grants summary judgment, the rump Diocese and ECUSA will of course be able to appeal, and could try again to raise the same grounds they urged before SCOTUS -- only now with a final judgment behind them. But the odds of succeeding with any such appeal will be long indeed, given that the U.S. Supreme Court has now rejected petitions for review in four recent cases (Connecticut, Georgia, Virginia, and Texas).

The same result should obtain in the Good Shepherd case from San Angelo, involving the Diocese of Northwest Texas. That parish effectively revoked any trust established by ECUSA's Dennis Canon when it decided to withdraw from the Diocese, and there is no evidence of any other irrevocable trust ever imposed on its property.

In front of SCOTUS, ECUSA and the Diocese of Northwest Texas tried to argue that the Texas Supreme Court's decisions, which adopted the "neutral principles" approach endorsed in the 1979 decision of Jones v. Wolf, caught them by surprise. However, it has been 35 years since Jones v. Wolf was decided, and the overwhelming majority of State courts now follow that case in deciding religious property disputes.

ECUSA's petition also mounted a frontal attack on the (5-4) Jones decision and its endorsement of the "neutral principles" approach. The national Church contended that the sanctioning of that approach, by which the courts do not simply defer to its authority, but actually dig down and examine deeds, chains of title, and governing documents and rules, interfered with its "free exercise" of its religion under the First Amendment. (As though, one notes, the holding of property and wealth could ever be a religion -- nevertheless, if there were ever any American church to profess such a religion, it would certainly be ECUSA.)

Neither argument -- the attack on Jones, or the one from surprise -- carries much weight, and neither persuaded the justices of SCOTUS (even though ECUSA had seen fit to hire a former U.S. Solicitor General, Neal Katyal, to write its petition to the Court). Intermediate Texas courts -- if not the Texas Supreme Court itself -- had been applying "neutral principles" for quite some time. Moreover, ECUSA itself admittedly tried to implement the Jones v. Wolf scheme by hurriedly enacting its Dennis Canon within just a month or so of the decision. So its claim to have been taken by surprise rang rather hollow. And in passing its Dennis Canon, it neglected to include the language which Texas law requires about irrevocability (as well as ignoring certain other points in the Jones majority opinion -- see this post for details).

While we await the decision of the Illinois Supreme Court as to whether it will agree to review the Diocese of Quincy decision, it could happen, therefore, that Texas will become the first State after South Carolina to make the Dennis Canon absolutely a dead letter there. The trial judge in South Carolina is also due to render a decision in a few weeks -- which will not turn upon the Dennis Canon as much as it will involve issues of religious corporation law.

I will, as always, provide you with commentary and analysis as soon as any of these other proceedings are decided. On a side note: this Wednesday the Justices of SCOTUS will hear oral arguments in this unusual fish tale of a case. Stay tuned.

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